CIV/A/7/79
IN THE HIGH COURT OF LESOTHO    
In the Appeal of :
EDINGTON K. KOMA Appellant
v
JOSEPH TSAKATSI  Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice I. Isaacs
on the 50th day of April, 1981.
This appeal from a judgment of the Judicial Commissioner
was dismissed by me with costs to the respondent except that
I amended the judgment of the Local Court to delete the
alternative award of R600 at R100 per head. I indicated that
I would file written reasons later, the following are my
reasons.
The appellant (who I shall refer to as the defendant)
was sued in the Mapholaneng Local Court by the respondent
(who I shall refer to as the plaintiff) for 6 head of cattle
being compensation for impregnation of Plaintiff's daughter
by defendant's son.
Plaintiff stated in evidence at the Local Court that
after his daughter reported to him, he had sent a message to
the defendant as a result of which plaintiff came to him with
his son Kabelo. He alleged that Kabelo accepted what he had
told him but denied that he was responsible for the
impregnation. This was in the presence of the chief and
other people on the 27th May, 1976. He said his daughter
mentioned that she had had sexual intercourse with defendant's
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son in September, 1975 and it was then she had conceived. He
said his daughter alleged that they had intercourse several
times. He said that Kabelo said in front of all the people
gathered, that he had unbuttoned his trousers in an attempt
to have sex but had failed. He had admitted that he had
indecently assaulted the girl but that on all occasions he
failed to have sexual intercourse, plaintiff alleged further
that the boy said that he was surprised to find that the
girl had a baby because she had written to inform him that
she had been to Bloemfontem to procure an abortion. He
said that the defendant objected when plaintiff requested
that the letters be read as defendant said there was no need
because the boy and the girl agreed. Defendant said that he
would report back to the Koma family. On the 3rd or 4th June,
1976 he received messengers from the plaintiff in effect
repudiating liability. In cross-examination by the defendant,
plaintiff said his daughter had said she had gone to Butha-
Buthe to dissuade her boy friend to proceed with their
engagement. Plaintiff also said that defendant's son had
instructed her to cease going to Butha-Buthe, In answer
to the Court he said his daughter had said they had sexual
intercourse for the first time in September and he marked the
date 26th September, 1975. He did not remember other dates.
He said the impregnation took place at Maseru where his
daughter was working while defendant's son was attending
High School. He put in as exhibits letters written by the
boy.
Bonang Tsakatsi witness No.1 for the plaintiff said
she was employed at Income Tax in Maseru. She said she and
Kabelo agreed to have sexual intercourse. They were very
much in love. She said they had intercourse in September,
1975 and it resulted in the birth of a child. She said
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Kabelo and defendant visited her home and Kabelo admitted
before plaintiff and respondent that they did have sexual
intercourse which resulted in the birth of the child. She
said that after having sex several times she told Kabelo and
also wrote to him that she was missing her menses. She said
Kabelo came to her and asked her to marry him and he gave her
his photo (an exhibit in the Court) She said that on the
day they were confronted she met him privately and asked him
why "he scandilised me so much by saying that I had gone to
Bloemfontem to perform an abortion." He said he did not want
to disappoint his parents by readily agreeing he was
responsible.
In cross-examination she said she had admitted before
defendant that she had a boy friend in Butha-Buthe. She said
that his son had jilted her because she went to Butha-Buthe.
She still wanted to marry him despite her pregnancy. She
said the day they gathered at her home Kabelo had admitted
that they had sex in Maseru. She said she was in love with
Kabelo when she went to Butha-Buthe to tell her boyfriend
that she loved him no more and to explain to him she was
already pregnant by Kabelo. She said they agreed in all
respects with the boy at the meeting.
Witness No. 2 for the plaintiff was one William Mpiti.
He said that plaintiff has sent him to deliver a letter to
defendant notifying him that his son had impregnated plaintiff's
daughter. He was present when defendant called on plaintiff.
He alleged Kabelo said that he had sex with plaintiff's
daughter with the purpose of impregnating her. The boy had
said he unbuttoned his trousers, and that he did not love the
girl anymore for continuing to go to Butha-Buthe to visit her
boyfriend. He said the girl wrote to say that she had gone
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to Bloemfontein for an abortion. The witness said that
defendant objected to letters being read because as he said
the boy and girl agreed. The witness also said that after
the meeting he had seen Kabelo and Bonang standing behind a
car. In cross-examination he said Kabelo had said that the
child was not by him. He said that Kabelo had said that it
was possible to sleep together but not succeed in having sex.
He said the girl said they had sex but the boy said he
failed to have intercourse.
Witness No.3 was plaintiff's chief Helanthibe Sekonyela.
He said that defendant's son admits that he impregnated her
daughter, and that Kabelo said he remained in his underpants
only, this witness also said that defendant had said there
was no need for the letters to be read because the boy and
girl had agreed. The witness also saw the boy and the girl
standing next to the car talking. In cross-examination the
witness said that the boy had said he had had sex with the
girl and agreed to everything the girl had said.
Plaintiff witness No.4 was 'Maleoto Tsakatsi the sister
of Bonang who gave evidence that Bonang had told her she
had been pregnant by Kabelo and they proposed to marry, she
had occassionally saw Kabelo at that place. Kabelo had once
told her that he was inlove with Bonang and that he wanted
to marry her. The last visit by him was in "October, 1975,
Defendant in his evidence denied liability. He said
that when the children were confronted the girl already had
a baby and that she had admitted informing her boy friend
at Butha-Buthe about the impregnation. He said that on the
day of the confrontation the girl admitted openly that she
never had sex with defendant's son and that plaintiff had
angrilly asked her what she meant and she replied that
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she would rather say Kabelo was responsible because she was
in love with him and the boy at Butha-Buthe. He said that
the plaintiff's witness No.2 William said this was "cross-
polination." He gave an example of white and yellow mealie
seeds sown and adjacent field. These examples were given
when the girl flatly denied having had sex with the boy.
Defendant said that he did not deny the love affair between
the boy and girl but denied the impregnation.
Kabelo was witness No.1 for the defendant. He said he
was in love with Bonang and their intention was to marry.
He said he was discouraged by the girls' behaviour. She
stated stealing away to her boy friend in Butha-Buthe and he
said he decided to part from her. He denied visiting her at
night from Matsieng. In regard to the confrontation meeting
he said "Bonang said I had impregnated her but that truly
speaking she did not to slander me and said that we never
had sex. She said that I had impregnated her because we were
very much in love. He admitted writing the letters. In
cross-examination he said " I cannot say who impregnated
Bonang."
The defendant's witness No.2 was one Tau Koma. He
gave evidence of the meeting between the parties. He said
plaintiff asked his daughter to explain who had impregnated
her, she said she had been impregnated by Kabelo even though
she could not explain how because they never had sexual
intercourse.
In cross-examination he said defendant was his brother.
The defendant's witness No.3 was one 'Molaoa Matla who said
that he had been delegated by the chief of Thabang to accompany
the defendant to plaintiff's. He said that plaintiff's
daughter said that she had been impregnated by the respondent's
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son even though they never had sexual relations.
The Local Court gave judgment in favour of plaintiff.
The President of the Court referred to the evidence and
particularly the letters written by defendant's son. He
said "I have thoroughly examined the evidence adduced by both
sides and I strongly believe that impregnation has been
committed and that Kabelo is responsible." Defendant appealed
to the Salang Central Court which upheld his appeal.
In his judgment the President of the Central Court said,
inter alia, "From evidence adduced in the trial Court there
has not been any testimony as to seeing or knowing that
Bonang had sex with Kabelo       It is only by conduct that
an inference may be drawn to the possibility that sexual
intercourse has been performed   The fact 'Maleoto
in her evidence said Kabelo was often seen with Bonang in
the evenings and that Bonang used to accompany him half-way
is not sufficient to make this Court believe that sexual
intercourse took place   This witness has not testify
that the boy and girl were seen together on evenings of 13,
21 and 26. 9. 75 which dates the girl says they had
sexual intercourse...."
The plaintiff appealed to the Judicial Commissioner
which upheld the appeal. The Judicial Commissioner in his
judgment said inter alia. What I think I should mention is
that even in Lesotho we require corroboration in sexual
cases. After considering the letters and other evidence he
said. "In any event it seems to me that the trial Court
believed that there was no strong denial of the allegations
against the boy."
In my opinion the Judicial Commissioner was correct in
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his approach. The trial Court heard and saw the witnesses
and came to the conclusion that Kabelo was responsible for
the impregnation and I do see anything to show that it
misdirected itself in any way. In seduction cases it is a
well known principle of law that the evidence of the girl
alleged to be seduced requires corroboration. Such
corroboration must be some evidence which is consistent with
her story and is inconsistent with the innocence of the
defendant (in this case defendant's son) (g.p. Mackay v. Ballot
1921 TPD. 430). In the present case there is the admission
of Kabelo that he and Bonang were lovers. Whatever Kabelo
said at the confrontation meeting I cannot see anything in his
evidence in the Local Court denying intercourse. Although
his letters do not speak of intercourse specifically. I
think the Local Court was justified in its interpretation
of them. I have considered the evidence that Bonang denied
sexual intercourse at the confrontation meeting but her
evidence in Court was specific. I cannot see anything in the
record of her cross-examination by the defendant that it was
put to her that she had denied at the confrontation meeting
having sex with Kabelo. There is merely a reference to cross
polination about which she said she did not remember the
talk.
The evidence as a whole in my view justified the Local
Court and the Judicial Commissioner in coming to the conclusion
they did. I think that the Central Court did not take into
account all the evidence which amounted to corroboration.
I therefore dismissed the appeal with costs to be
paid by appellant, but I amended the judgment. The claim
by the plaintiff in this case was for 6 head of cattle.
He did not claim money in the alternative. Counsel for the
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respondent in this Court contended that it was usual for
Local Courts to put a money value on cattle as an alternative
to delivery. If so, in my opinion, there should be evidence
of the market value of cattle at the date of judgment. There
was no such evidence here. Moreover it seems to me that the
values of all head of cattle cannot be the same. I therefore
amended the Judgment by deleting the order for R600 in the
alternative.
ACTING JUDGE
30th day of April, 1981.
For Appellant -Mr. K. Sello
For Respondent-Mr. M.M. Ramodibeli.